Opinion
July 20, 1970
Appeal by the State from a judgment of the Court of Claims, entered November 21, 1969, in favor of claimant. A cross appeal by the claimant was withdrawn. Claimant was the owner of 12 acres of land of which only a small part was devoted to residential purposes. Prior to the appropriation the property had a 100-foot frontage along Route 17. The State appropriated a 90-foot strip, 2 feet wide along the frontage, leaving a 10-foot portion remaining as access to the property. The parties disagree as to the effective depth of the property. The court found that the frontage area was 240 feet deep. It also found the highest and best use before the taking was commercial, and the best available use after the taking was residential, since the limited access destroyed its commercial value. The court awarded damages of $21,000, allocating $150 as direct, and $20,850 as consequential. The State maintains that the court erred in finding that the highest and best use prior to the taking was commercial. It argues that after the depth of 140 feet, the property starts to slope upward and is completely wooded; that in view of this it would not be feasible to move the house to the rear of the frontage area; and it's highest and best use prior to the taking was, therefore, residential. The State also contends that the consequential damage award was not within the range of testimony. We agree with the trial court that prior to the taking the highest and best use was commercial. The testimony revealed that the property was close to the "Quickway" exit and most of the property to the west was commercial, as was the trend in the area, particularly with the change in zoning to commercial, effective within three weeks of the taking. As to the depth of the lot, claimant's appraiser testified it was 240 feet, and the court viewed the property. While the court's visual observations cannot substitute for testimony, he may utilize his observations to understand and apply the testimony. ( Matter of City of New York [ A. W. Realty Corp.], 1 N.Y.2d 428.) The State relies on the taking map which it contends shows the property to be 140 feet in depth. It is conceded that that portion of the map which delineates the appropriated land was drawn to scale. There is no such concession or stipulation as to the rest of the map. The Court of Claims decided this as a question of fact in favor of the claimant. It is well established that where there is a change in the highest and best use due to a taking, consequential damages are proper. ( Lundquist v. State of New York, 33 A.D.2d 950; Priestly v. State of New York, 23 N.Y.2d 152.) On this record, the court was justified in awarding consequential damages. There is merit, however, in the State's contention that the damages were not within the range of testimony. Claimant's appraiser placed a before value on the frontage area of $20,000 and an after value of $2,000. The State appraiser placed a before value of $3,000, and an after value of $1,800. The court found $22,000 and $1,000 respectively. This is clearly not within the range of testimony and is improper ( Matter of City of New York [ A. W. Realty Corp.], supra), unless adequately explained by the court ( Spyros v. State of New York, 25 A.D.2d 696). We believe the court's explanation is insufficient and, therefore, this portion of the award must be reduced from $20,850 to $18,050. Judgment modified, on the law and the facts, so as to reduce the award to $18,200 and appropriate interest, and, as so modified, affirmed, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Sweeney, J.